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THE INITIATIVE AND REFERENDUM AND 
RECALL OF JUDGES 

CRITICISED AND CONDEMNED. 

REPRESENTATIVE LEGISLATION EXPOUNDED 
AND DEFENDED. 

A UNITED STATES STATUTE ON THE SUBJECT ADVOCATED. 

By 
FRED. A. BAKER 

it 

Of the Detroit Bar. 

The initiative and referendum is the most insidious, 
vicious, and unconstitutional proposition ever brought for- 
ward in the entire history of democratic institutions and 
representative government. 

A meeting of the people themselves, or of their repre- 
sentatives immediately and directly elected by them, in a 
deliberative assembly, is absolutely essential to any exer- 
cise of the power of taxation or of the power to enact, 
amend, modify or repeal a law; that is to say, there must 
be a meeting or assembly, by whatever name it may be 
called, at which the proposed tax or law can be considered, 
discussed, amended, adopted or rejected. 

To levy a tax or enact a law by an initiative petition and 
a referendum, with each voter expressing his opinion in 
isolation, and without a legislative assembly at which the 
opponents of the measure can be heard and their objections 
and arguments considered, and the amendments and modi- 
fications of both friends and foes passed upon, would make 



/ __^ ^f /^riSj 



V 

any democratic or republican form of government in- 
effective and abortive or tyrannical and self-destructive. 
It would prevent the electorate from acting with that full 
information necessary to the exercise of a sound judgment 
and discretion ; it would cut off all the right of the minority 
to be heard, and permit the mere numerical majority to 
impose their ill-considered views upon the whole people, 
regardless of their interests and welfare; it would carry 
the mere counting of noses to such extreme and absurd 
limits as to make democracy and representative govern- 
ment tyrannical, oj)pressive and odious; and it would 
finally result in disorder and anarchy, and a return to a 
military dictatorship or a monarchy with more or less of 
despotic power. 

In the United States we have a congress, the lower house 
of which is composed of representatives directly elected by 
the people, and all revenue bills must originate in that 
house. 

In each state we have a legislature, one branch of which 
at least is elective; in counties we have a board of super- 
visors or county commissioners, who are directly elected; 
in cities and villages we have councils or boards of trustees 
elected by the people; and in townships we have town 
meetings in which are assembled the electors of the town- 
ship, and town boards or select-men elected by the people ; 
and school districts and other taxing districts are organ- 
ized in the same way. • 

This is representative government as it exists in the 
United States. 

The people of England struggled from the Norman con- 
quest, 1066, to the revolution of 1688, or for over six hun- 
dred years to establish the principle of representative tax- 
ation and legislation, and it took another century and the 
revolutionary war, to firmly plant the doctrine in America. 

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In Anglo-Saxon a meeting was called a gemot; lience 
seirgemot, or meeting of the shire or county; burhgemot, 
a meeting of the burgers ; Avardgemot, a ward meeting in a 
town corporate; halimot, a meeting of the tenants in the 
hall of a manor ; and witenagemot, a meeting of the wise- 
men or magnates of the kingdom. 

After the Norman conquest the substitute for the witen- 
agemont was called the great or common council of the 
realm, which eventually became the parliament, from par- 
ley, to discuss orally. 

In America we call our most important legislative bodies 
constitutional conventions, and our great partizan meet- 
ings are national conventions, meaning a convening of 
delegates, to recommend measures and nominate candi- 
dates. 

"Caucus" is said to have been derived from a calkers' 
guild or meetings in Boston, and was applied in derision 
by the Tories to meetings of citizens, among whom were 
calkers and rope makers, held after the Boston massacre to 
protest against the aggressions of the royal troops. 

"Assizes," used to designate county courts in England 
and Canada, is derived from assiclere, sitting by or to- 
gether as the jurors do. 

In church nomenclature we have the Sacred College for 
the election of the Pope, from collegia, or gathered to- 
gether. Our own electoral college for the choice of the 
President has the same derivation, but its functions of 
deliberation have been absorbed by our national conven- 
tions. 

Synod is from synodus, a meeting; and convocation, 
chapter, conference, congregation, all mean a church or re- 
ligious meeting, council or assembly. 

We can not have successful popular governments or 
save our souls in an orthodox way, without these legis- 
lative and deliberative meetings. 



4 

Chaos cannot be overcome by order, plurality cannot be 
brought to unity, in any other way. 

What kind of success would the barons of England have 
met with when they demanded Magna Charta of King 
John, if they had not held repeated meetings, and Arch- 
bishop Langton had not dug up the forgotten charter of 
Henry I, and expounded its provisions as an aid in putting 
the articles they agreed upon in shape? 

What kind of progress would our own revolutionary 
fathers have made if they had not held innumerable town 
meetings, county meetings, colonial meetings, and confed- 
eration meetings, and how could thej^ ever have agreed on 
the constitution of the United States if they had not held 
the Federal convention of 1787? 

In a number of leading states, the conventions held to 
ratify the constitution, were composed of a majority of 
delegates Avho were opposed to the constitution, and were 
onl}' convinced and brought over by argument and debate. 
If the question of ratiflcation had been left to a popular 
vote, without a convention, the constitution would not have 
been ratified by the necessary nine states. 

Madison and Hamilton by their published letters in the 
Federalist were not able to convince their own constituents 
in Virginia and New York that the constitution ought to 
be ratified; but when they and their friends met their 
opponents in deliberative conventions, and in free and 
open debate, they carried the day. Madison had to over- 
come the opposition of such distinguished patriots as 
George Mason and Patrick Henry. 

Hamilton had to contend with a convention more than 
two-thirds of which were opposed to the constitution. 
George Clinton, the governor of the state and president of 
the convention, was the leading opponent of the constitu- 
tion, and he had the support of Yates and Lansing who 



had deserted the Federal convention before the constitu- 
tion was completed. Eatification was only carried by a 
vote of thirty to twenty-seven, when more persons were 
absent from the vote than would have been necessary to 
change the result. 

These historical illustrations show the utility of oral 
debate, and its great superiority over publications in the 
newspapers. 

Two other illustrations : 

What would the Republicans who assembled in mass 
convention under the Oaks in Jackson in 1854, have accom- 
plished if they had made their platform with initiative 
petitions and had nominated their candidates by a primary 
election ? 

What would the Republican party have amounted to in 
1860, if their candidate had been nominated in a national 
primary, and their platform had been formulated by ini- 
tiative petitions? 

No great result was ever accomplished without meet- 
ings, debates, conferences, compromises and adjustments, 
productive of that unit}- of purpose and of action essential 
to success. The separate and independent action of each 
voter, when you come right down to it, is idiotic. 

Fortunately the constitution of the United States pro- 
vides that "The United States shall guarantee to every 
state in the Union a republican form of government.", 

This provision was considered by the Supreme Court of 
the United States during the disturbances in Rhode Island 
known as Dorr's rebellion and during the more recent con- 
troversy in Kentucky over a gubernatorial election, but in 
both these cases the questions presented were purely politi- 
cal and the court held that if any state should set up a gov- 
ernment that was not republican in form it would be the 
duty of congress and not of the court to overturn it. 



6 

If the case from Oregon, now pending in tlie court, is of 
like nature, I appreliend the result will be the same. The 
Supreme Court has no general authority to expound the 
constitution ; it can only do so, in litigated "cases in law or 
equity arising under this constitution. " Madison was very 
insistent on haying the judicial power of the general gov- 
ernment so limited. 

The question cannot properly come before the Supreme 
Court until some person resists an attack upon his person 
or property hj or under a tax levied, or a law (like one 
creating a criminal offense) enacted by an initiative peti- 
tion and a referendum. When the question is so presented 
there can be very little doubt about the result. However 
it is possible the court never will pass on the question until 
congress has intervened. 

Arizona should be admitted to the Union with her con- 
stitution as it is, but congress should pass an act invalidat- 
ing the initiative and referendum not only in that state, 
but in all other states in the Union, where it has obtained 
or may obtain a foothold. 

The act should be entitled "An act to guarantee to every 
state in the Union a republican form of government." The 
body of the act should read substantially like this : 

"Sec. 1. In no state in the Union shall any tax be levied 
or any law be enacted in the state or in any county, .town- 
ship, city or village, or in any other political or taxing sub- 
division or district thereof, except with the consent and 
approval, of a legislative body or assembly, consisting of 
the electors themselves, or of representatives immediately 
and directly elected by them; and any tax levied or law 
enacted in violation of this act shall be deemed unconstitu- 
tional and void, in all places and in all courts throughout 
the United States. 

"Sec. 2. An independent, impartial and untrammelled 
judiciary is declared to be essential to constitutional repre- 



sentative government, and any state law or constitutional 
provision providing for tlie recall of judges, by initiative 
petition and a referendum, without impeachment or other 
trial, shall also be deemed in conflict with the constitution 
of the United States and void." 

Such an act would simply put into statutory form, the 
essential principles, the quintessence, of that representa- 
tive form of government, it has taken so many centuries of 
struggle to establish in England and the United States. 

We have an exception from the doctrine in the pro- 
visional governments of territories, such as now prevail in 
Alaska and the Philippine Island, but no one pretends 
that these are representative governments ; they are proba- 
tionary and will soon pass away, as have all others of a like 
nature, subject to the jurisdiction of the United States. 

When the constitution was being framed and ratified 
Jefferson was in France. Writing to Madison, Dec. 20, 
1787, he mentioned the things in the constitution which he 
liked and those he disliked, being especially strong and 
instructive in his condemnation of the omission of a bill 
of rights. Among other things, he said : 

"I like the power given the Legislature (Congress) to 
levy taxes, and for that reason solely, approve of the 
greater house being chosen by the people directly. For 
though I think a house chosen by them will be very illy 
qualified to legislate for the Union, for foreign affairs, etc., 
yet this evil does not weigh against the good of preserving 
inviolate the fundamental principle that the people are 
not to be taxed, but by representatives chosen immediately 
by themselves." 

In the Federal convention Eoger Sherman of Connecti- 
cut, Elbridge Gerry of Massachusetts and Charles Pinck- 
ney and John Eutledge of South Carolina, advocated the 
election of the members of the first or greater house by tLe 



state legislatures, but the proposition was literally jumped 
on by George Mason and James Madison of Virginia and 
James Wilson of Pennsylvania; and Alexander Hamilton 
ot New York, stating a principle wliicli be upheld with 
unswerving consistency, said : '^It is essential to the demo- 
cratic rights of the community that the first branch be 
directly elected by the people." 

Madison held the popular election of one branch of the 
national legislature indispensable to every plan of free 
government. 

Wilson said, "The election of the first branch by the peo- 
ple is not the corner-stone only, but the foundation of the 
fabric." 

It never occurred to these wise and sagacious statesmen 
to preserve democracy by wholly or partially eliminating; 
the house of representatives by putting the initiative and 
referendum into the constitution. 

It remained for the wiseacres of the present generation 
to invent and urge the adoption of this device to enable the 
people to. save themselves from their own freely chosen rep- 
resentatives, and their own jiolitical negligence or incom- 
petency. 

The fundamental objection to the initiative and refer- 
endum is the fact that it provides for the levying of taxes 
and the enactment of laws without submitting the pro- 
posed tax or law to the crucible and judgment of a delib- 
erative assembly. 

Any one person, or a coterie or cabal, can frame a law 
and circulate initiatory petitions. Those who are solicited 
to sign can not propose an amendment or listen to an argu- 
ment against the proposed measure; they must sign or 
refuse to sign; and it is certain many will sign without 
knowing or understanding what they are doing, or what 
really actuates those who go to the labor and expense of 



9 

circulating the ]3etitions ; tliat tliey ^yiIl get some informa- 
tion from their immediate associates and acquaintances 
and from the public press is evident. 

The newspapers could be relied upon to furnish the 
necessary information and discussion, if it was not for one 
thing, and that is the fact that a newspaper presents only 
one side of public questions, and the greater number of 
voters take only one paper and many of them do not even 
read the one they do take. Each newspaper has its own 
propaganda and frequently misleads rather than instructs. 
The pai)er that xDublishes the arguments pro and con, with- 
out interjecting the opinion of its own editors or pro- . 
prietors is yet to be published. The London Times for- 
merly attempted something of the kind, yet it was known 
in English politics as the "Thunderer." 

The tavern and saloon, and other places, if there are any, 
where men meet for conversation and social intercourse, 
may furnish some assistance. When we see our German 
fellow citizens in a saloon sitting at tables drinking beer, 
and engaged in spirited and protracted conversation, we 
are led to believe that this is the one redeeming feature of 
such j)laces of resort. 

It is evident that desultory discussions wherever they 
may take place are no sufflcient substitute for deliberative 
assemblies iDrOceeding according to parliamentary usages. 

The stump speeches of political campaigns are interest- 
ing i^henomena, but their principal design is to fire the 
partisan heart. The less a speaker argues and reasons, 
and the more he declaims and hurls invective at the oppo- 
site party, the more popular he is, and the larger audiences 
he draws. The people like a good theatrical or oratorical 
performance. Take a bunch of these political spell- 
binders, and put them in a deliberative body like 
a house of representatives or senate, and they soon reach 
their own level of mediocrity. 



10 

One good rough and tumble debater and parliamentarian 
is worth a dozen of them as far as effectiveness and results 
are concerned. 

The pulpit could be of great service and at times is so, 
but the clergy are more concerned with things spiritual 
and the salvation of souls; and the most horrible and ap- 
palling vice of the human race is religious fanaticism. 

The Crusades were the most stupendous folly ever per- 
petrated by mankind. 

Happily, a movement started by William the Conqueror, 
with his ordinance separating the spiritual and temporal 
.courts, and continued by Henry II. with his constitutions 
of Clarendon and his famous quarrel with Archbishop 
Becket has separated the church from the secular govern- 
ment. At all events the people nowhere in America are 
prepared to make the clergy the rulers of the state. 

Where then are we to find deliberative assemblies unless 
we continue to make use of those we now have? 

Why a deliberative assembly? 

The reason is plain. In our courts of justice from the 
highest to the lowest, we have the learned judges and the 
juries, but associated with these we have a body of trained 
advocates more or less learned in the law. From this body 
of lawyers, each litigant selects his champion, and these 
two engage in a sort of intellectual wager of battle. The 
facts are fully brought out and the law is dug up, each 
advocate making the best showing and the most convincing 
arguments in favor of his client he possibly can. In that 
way the judge is informed or refreshed as to the law, and 
the jury are enabled to reach a conclusion as to the facts. 
The lawyers are a necessary part of the court. You can 
not well leave them out. All our constitutions secure to 
accused persons the right to counsel, and if the accused is 
not able to pay his lawyer, the state does it for him. All 



11 

this has been shown by centuries of experience to be essen- 
tial to a due administration of justice. 

The method of procedure in a legislative assembly is 
precisely of the same nature. Each house of congress or of 
a state legislature is divided into two or more parties. If 
a single party has all the membership, that party will di- 
vide into two or more factions. Leaders come to the front 
for each party or faction, and every proposed tax or law is 
analyzed, dissected, discussed and debated; committees 
are appointed to investigate, consider and report; amend- 
ments are proposed and passed upon; and in that way a 
final result is reached. The only difference between a court 
of justice and a legislative assembly is that in the one the 
presiding judge determines the law, and t]ie jury the facts, 
while in the other the whole membership are the final arbi- 
. trators, and decide by a vote taken of the whole house. In 
that way taxes are levied and laws passed; bad laws 
amended or repealed; unjust taxes abolished, and just 
taxes continued. By this system of legislative assemblies, 
the laws are being gradually but surely improved and tax- 
ation more justly imposed. 

The initiative and referendum abandons this refining 
and clarifying process, and with the recall of judges and 
other officials reduces all the departments of government, 
to the ill considered, immature, capricious and odious 
tyrann}^ of a mere majority of the qualified voters. 

Democracy has very great merits, but it also has its lim- 
itations and like every human device or contrivance, can 
be run into the ground and rendered worse than useless. 

The voice of the people is not the voice of God except 
when the people are right. Our real sovereigns are Reason 
and Justice. 

The people cannot secure a just government except hf 
the use of their time-honored legislative assemblies. 



12 

They never have and they never will promote their best 
interests and secure the blessings of a good government in 
any other way. 

The peoj)le are sovereign, but they can not hope to reach 
or attain reason and justice but by legislative assemblies. 

The two great fundamental principles of the constitu- 
tional law of the United States are mutually and recipro- 
cally dependent on each other. 

1. All the sovereign powers of government, legislative, 
executive and judicative, are vested in the people. 

2. The people can only exercise their powers of sov- 
ereignity by means of legislative assemblies and independ- 
ent and untrammelled courts of justice. 

Both of these principles are expressl}^ or impliedly to be 
found in every American constitution. If not affirmatively 
expressed they are assumed to exist, as the two great and 
immovable bulwarks of constitutional liberty. 

Chief Justice Fuller, speaking for the whole court in a 
case from Texas {139 U. S. J/JfO) said: 

"By the constitution, a republican form of government 
is guaranteed to every state in the Union, and the distin- 
guishing feature of that form is the right of the people to 
choose their own officers for governmental administration, 
and pass their own laws in virtue of the legislative power 
reposed in representative bodies, whose legitimate acts 
may be said to be those of the people themselves; but while 
the people are thus the source of political power, their gov- 
ernments, national and state, have been limited by writ- 
ten constitutions, and they have themselves thereby set 
bounds to their own power as against the sudden impulses 
of mere majorities." 

Eeferring to Daniel Webster's argument in the Rhode 
Island case, the chief justice said : 



13 

"Mr. Webster's argument In that case took a wider sweep 
and contained a masterly statement of the American sys- 
tem of government, as recognizing that the people are the 
source of all political power, but that as the exercise of 
governmental powers immediately by the people them- 
selves is impracticable; they must he exercised hy repre- 
sentatives of the people/' etc. 

In a case from California involving the validity of a 
telephone ordinance of Los Angeles {211 U. ^. 265), the 
court in an opinion by Mr. Justice Moody, said : 

"The charter of the city also contains a provision that 
upon petition of fifteen per cent of the voters of the city 
any ordinance proposed must be submitted to the people 
and maj be b}^ them ado^jted. It is said, therefore, that 
the power of rate regulation might be, in this manner, exer- 
cised directly by the electorate at large. It may well be 
doubted whether such a result was contemplated by the 
legislature. There are certainlj'^ grave ohjcctions to the 
exercise of such a power, requiring a careful and minute 
investigation of facts and figures, by the general body of 
the people, however intelligent and right-minded. But the 
ordinance was not adopted in this manner in this case, and 
it will be time enougii for the courts of the states and of 
the United States to consider, when that is done, whether 
the objections only go to the expedience of such a method 
of regulation or reach deeper and affect its constitution- 
ality." 

If the court speaks so guardedly about a mere referen- 
dum, it is evident that the question of the constitutionality 
of the initiative and referendum is an open one in the Su- 
preme Court of the United States. 

In Michigan it has been decided. 

In a case involving the question whetlier the legislature 
could vest the legislative power of the city of Detroit in a 



14 

board of appointive officers not directly elected by the peo- 
ple, the Supreme Court of the state (29 Mich. 112), in an 
opinion by Judge Cooley, said : 

"I shall assent to the position of the respondents that 
the common council of a city — I mean a body commonly 
known by that name, whether in any particular charter so 
designated or not — is a distinctive and inseparable feature 
of municipal government under our existing institutions, 
and cannot be done away with. I shall also agree that to 
leave it in existence and strip it of its legislative powers is 
as palpable a violation of the constitution as would be its 
entire abolition." 

If representative government is essential to municipal 
organization, it must be in a still higher degree essential to 
state governments. 

There is a deeper, and a more profound and conclusive 
objection to the initiative and referendum. An act of con- 
gress or of a state legislature is law only in the narrow and 
restricted sense of being a written enactment declaring 
what the congress or the legislature intends and designs 
the law to be ; but it cannot become law in its scientific and 
strictly accurate sense, if it conflicts with the customs, 
manners, habits, sentiments and predelictions of the peo- 
ple supposed to be governed by it. 

The customary law either suspends or overrides, and de- 
feats all statutor}^ law, not in accord with it. "The writ- 
ten law is victorious on paper and powerless elsewhere." 
So wrote the late James C. Carter of New York, in his 
great work on "Law, its Origin, Growth and Function," 
which was completed a short time before his death, after a 
long and successful career in which he reached the very 
highest rank in the legal profession. He gives a number of 
illustrations, showing how the original statute of uses was 
turned upside down to bring it into harmony with the long 



15 

established customs by which men bestowed their property 
for the benefit of relatives and others; how the statute of 
limitations was modified so as not to apply to cases of 
concealed fraud ; how the statutes against engrossing, fore- 
stalling and regrating remained a part of the statutes of 
the realm for over tAvo hundred years, with spasmodic ef- 
forts at enforcement, and finally were "repealed in peni- 
tential shame ;" how prohibitory liquor laws are found im- 
possible of enforcement except in small rural communities, 
although the use of intoxicating liquors is not a universal 
custom, but only a widespread practice ; how the great con- 
stitutional amendments of the civil war and the acts of 
congress, designed to secure to the negro race the right of 
suffrage and political equality, have been defeated in the 
southern states, with the acquiescence of the north, be- 
cause of the abhorrence of white men to being subjected to 
negro rule. 

He found his more complete illustration in the struggle 
now^ going on between the rule of the customary law, which 
has prevailed from the earliest times, that public highways 
should be open to the use of the public on terms of equality, 
and the anti-trust law, which seeks "to make competition 
and difference in rates the supreme policy, whereas the 
universal custom requires the suppression of competition 
in rates, and the preservation of uniformity." 

He might have added that the powers conferred on the 
interstate commerce commission are designed to accom- 
plish the results the anti-trust law was passed to prevent. 

His reference to prohibitory liquor laws is particularly 
applicable to the present situation here in Michigan. The 
advocates of the initiative and referendum frankly confess, 
indeed it is their main argument, that they want to enact 
laws they cannot get the legislature to pass. The legisla- 
ture is composed of members coming from all parts of the 



16 

state, and every conceivable interest is represented. Legis- 
lation consists of a series of compromises, modifications 
and adjustments, and unless a measure can be so framed 
as to secure the necessary majority in each house and 
executive approval, it will not have that respect in the 
minds and hearts of the people, essential to become a law in 
fact as well as in name. 

We have statutes defining and punishing murder, rob- 
bery, burglary and other infamous crimes, and being in ac- 
cord with the feelings and sentiments of the people, they 
are as a general rule, enforced. 

On the other hand we have a statute making the punish- 
ment for keeping a house of ill repute, five years imprison- 
ment. It could not be enforced because, for one excuse 
or another, the juries would not convict. In sheer despera- 
tion the prosecuting officers advised the Detroit common 
council to j)ass an ordinance prescribing a more reasonable 
punishment. 

A drastic statute never works in practice. 

Adopt a prohibitory liquor law in a county and it does 
more harm than good; it will abolish saloons and hotel 
bars, but it will increase private drinking, and very many 
men who voted for the law will violate it without compunc- 
tion. 

Enact a state-wide prohibitory law and it will be equally 
ineffective. Congress never has, and probably never will 
pass an act permitting the states to prohibit the importa- 
tion of intoxicating liquors, and if such an act should be 
passed and be enforced it would do no good, because the 
people would then distill or brew their own liquors. All 
races of men, whether barbarous or civilized have done 
something of the kind. Our New England forefathers im- 
ported molasses from the West Indies, and made rum. 
Ministers of the Gospel and others able to do so, had a still, 



17 

as the inventories of estates on file in tlie probate conrts 
conclusively^ sliow, and nothing was thought of it; 

When the British Parliament passed the molasses act, 
imposing a duty on the importation of molasses, and under- 
took to enforce it, it caused a perfect uproar in Xew Eng- 
land, and was one of the causes which led to the revolu- 
tion. 

It is said that the use of liquors has been very much 
reduced. Some one has figured out that reducing spirits, 
wine and beer, to the alcohol contained in them, the per 
capita consumption in the United States has not varied 
more than a pint from year to year for one hundred and 
thirty-six years, and is now right where it began. This 
shows how all prevailing and universal the custom is, and 
this customary law cannot be overcome by any statutory 
laAv that ever has or ever can be enacted, for it has its 
foundations in a defect and imperfection in human nature, 
which is there to stay. 

The extra-hazardous industrial pursuits of modern in- 
vention and civilization are doing more for temperance 
than any other thing, but it is because the people do not 
like to ride on a railroad train, or in a street car in charge 
of a drunken locomotive engineer or motorman. In that 
way the peoi^le are making a customary law more powerful 
than any statute. 

The initiative and referendum proposes to disregard the 
customs, habits and prejudices of the people, as reflected 
in their legislative assemblies. 

The great conservative party in England proposes a 
referendum to defeat the measures proposed b}^ the en- 
lightened public opinion of the Kingdom, as formulated 
and expressed by the popular representative body, the 
house of commons. 

The conservatives hope that the hereditary Lords, by 
exercising their influence with their tenants and other 



18 

ignorant voters, may defeat the demands of the general 
public as representatively expressed. 

The advocates of the initiative and referendum claim 
that they are the only true friends of the people ; that they 
are especially anxious to have the people rule; but they 
ought to realize that the people can only make themselves 
effective and enforce their will by the use of legislative as- 
semblies, which have been their main resort, reliance and 
weapon for over tAvo thousand 3^ears, and will be for two 
thousand and more years to come. 

Some of my readers may be under the impression that 
the recall of judges has nothing to do with representative 
government as guaranteed by the constitution of the 
United States. They are mistaken. If they will examine 
the bill of rights and the act of settlement passed as the 
result of the English revolution of 1688, they will see, that 
it was then settled forever that no tax could be levied or 
any laAv be enacted or suspended, or dispensed with, with- 
out the consent of parliament, and that coupled therewith 
are provisions securing the independence of the judiciary. 

The act of settlement saj'S : 

'^That after said limitation (the limitation of the crown) 
shall take effect as aforesaid judges' commissions be made 
QuamiUu se hene gesserint (during good behavior), and 
their salaries ascertained and established ; but upon the 
address of both houses of parliament it may be lawful to 
remove them," 

The last clause is the equivalent of impeachment for 
cause. 

Before the act of settlement the Stuart kings of England, 
under their favorite doctrine of divine right, still held by 
the Kaiser as king of Prussia, had appointed and removed 
the judges at their own sweet will and pleasure, with the 
consequence that the crown controlled the courts. 



19. 

Notable instances of the subserviency of the judges to 
the crown, are the final consent of all of the twelve judges, 
save one, that they would delay a case and consult the king 
at the request of his attorney general, and the dismissal of 
the contumacious Chief Justice, Coke, who would only say, 
that when the case came before him, he would do what a 
judge ought to do; the case of John Bates, who contested a 
duty on currants imposed by the King without the consent 
of parliament ; the case of John Hampden, who refused to 
pay a tax to build ships, levied on the inland counties with- 
out the consent of parliament ; the case of Goddard against 
Hales made up to obtain a decision from the judges 
that the King could suspend an act of parliament without 
it's consent ; and the prosecution of the Seven Bishops for 
petitioning the King to be relieved from reading from their 
pulpits a proclamation of indulgence dispensing with a 
statute. 

The act of settlement was passed eighty-seven years be- 
fore the constitution of the United States was framed, and 
we find in that constitution a provision that the judges 
"shall hold their offices during good behavior and shall 
at stated times receive for their services a compensation 
which shall not be diminished during their continuance in 
office." 

All of the states, until we reach Arizona, have constitu- 
tional or statutory provisions to the same effect, whether 
the judges are elected or appointed, and hold their offices 
for life or for a definite term. 

The supreme object of all this, is to have one branch of 
the government especially designed to stand as an insur- 
mountable obstruction to encroachments on the constitu- 
tional rights of representative taxation and legislation, or 
any other constitutional right, by either the executive, the 
legislative, or a majority of the people themselves, or all 
of these acting together. 



FEB n 1912 



LIBRftRY OF CONGRES:> 



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20 



The judiciary are the guardians of the constitution. 

A constitutional republic thus safeguarded is the best 
system of government that has ever developed in the his- 
tory of institutions. 

The learned judges are sometimes a little reluctant to 
assume the responsibility, but when it comes to the final 
test they will not be found wanting, at least as long as 
they are recruited from a bar devoted to the study of con- 
stitutional history and law. 

The recall would be destructive of the independence of 
the judges, and an independent judiciary is necessary to 
preserve representative government. 

The people in the enjoyment and exercise of their sover- 
eignty are no more entitled by the recall to influence and 
control the judges than the king or the parliament of Eng- 
land, or the president or the congress of the United States, 
or the governor or the legislature of a state, for an indepen- 
dent judiciary is necessarj^ to enable the judges to do 
homage to the sovereigns and overlords of all — Keason 
and Justice. 



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